AssociationHelpNowTM READ BY ASSOCIATION BOARD MEMBERS AND MANAGERS
We would like to establish a rule where dogs may only be allowed to defecate in a certain area, however the closest area is 1-1/2 blocks away. Some residents consider the distance a hardship. How do consider the wishes of the residents who want “defecate” free areas to the needs of our residents with service dogs?
First, let’s be clear about the type of dog that you are talking about. A “service” dog is a dog trained to assist someone with a disability, such as a seeing-eye dog or a seizure alert dog. [Emphasis on “trained.”] An emotional support animal has no special training. You are obligated to make “reasonable accommodations” to a shareholder with a disability. The question is what would be considered “reasonable” under the circumstances. Some of the factors you might consider include whether the resident at issue has material physical difficulty getting to the designated defecation area; whether the area is sufficiently large to accommodate multiple animals; or whether the requirement is even enforceable (dogs can’t read signs.) Ultimately the determination is somewhat subjective. In my judgment, if these are emotional support animals only and the dog area is otherwise practical, you have satisfied the requirements for offering a reasonable accommodation, but you may need to adjust your requirements to deal with specific circumstances.
In part the answer depends on whether or not residents have private property (yards) where animals can defecate. If so, then I think having common property a short distance away for defecation is acceptable (and perfect for a Rule). If, however, there are no yards but only the common property, but pets are allowed, then the differentiation between pets and service animals becomes more important. Service animals serve different purposes for different people. If one is to help the owner walk, and walking the short distance is a true hardship, then the rule about defecating only in the common area may need to b relaxed for that person for legal purposes of accommodation. If, however, the person is able to get to the common area, then there is no problem with requiring use of the common area fo defecation.